Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

One of the most efficient ways in the discrimination context to show that an employer’s stated reason for termination is false is showing that it has changed its reason for termination. The applicable case law calls these shifting reasons, and it is a powerful tool in your journey to getting a case to trial.

Absent direct evidence of discrimination, as are most cases, employees are left with having to maneuver one of the multiple iterations of the McDonnell Douglas burden-shifting framework. In its most basic form, the McDonnell Douglas burden-shifting framework is stands for the requirement that an employee must first prove a prima facie case, which are the barest elements of a discrimination claim. After that, the employer puts forth a non-discriminatory reason for why it took the adverse action. Finally, the employee must respond by showing that the employer’s reason is false. In this blog I would like to address one of the best methods of satisfying this last prong. Specifically, I would like to delve into using an employer’s multiple stated reasons, or shifting reasons, for termination to satisfy the requirement of pretext.

To illustrate this point, I would like to provide an example. Let’s say that an employee is terminated. At the time he is terminated he is informed of his termination his boss orally informs him that it is because of his excessive late arrivals. Subsequently, he receives a formal letter informing him that he was terminated for excessive late arrivals and several performance issues that were never brought up to his attention. At the EEOC stage, the company informs the EEOC that the employee was terminated because of performance issues and absenteeism. At this point we have three different and distinct reasons for termination. Under Fifth Circuit precedent this would be enough to establish that the employer is lying.

That is because shifting and changing reasons for an adverse employment action allow a jury to find that the stated reason is false. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 415 (5th Cir. 2007). In Burrell, the employer gave several reasons as to why the employee was not promoted. At first it stated that the plaintiff in that case was not promoted because he lacked “purchasing experience.” Then the employer stated that he was not promoted because he did not have “purchasing experience in the bottling industry.” Finally, the employer stated that the plaintiff was not promoted because the employee did not have “bottling experience.”

The Fifth Circuit in Burrell held that while similar, these reasons were sufficiently different that a jury could find that the employer’s stated reason for failing to promote the plaintiff was false. Specifically, the court held that “[t]his unexplained inconsistency was further evidence from which a jury could infer that Dr. Pepper’s proffered rationale is pretextual.”

Applying the above cited case law to the example I gave; it is clear that a court would be hard pressed to find against an employee with regards to the pretext prong. The reason for this is that Burrell establishes that even if the reasons look similar, the shifting of the reason why someone was the subject of an adverse action allows a reasonable juror to find that the reason is false. And this makes sense because in our everyday life we often hesitate to believe an individual who is unable to keep their story straight or stay consistent.

It has become common place that the most contentious area in the road to a jury trial is the pretext stage. In fact, I am of the opinion that most cases often are won or lost at this stage. This combined with the often times over formalistic lens that courts view the case using the McDonnell Douglas burden-shifting framework makes it so that it is of the utmost importance that you retain an attorney that specializes in employment law. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. Moreover, given the short statute of limitations that are often found in employment claims, time is of the essence. If you feel like you have been discriminated or retaliated against, feel free to contact us to schedule an appointment with one of our attorneys.

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Photo of Jairo N. Castellanos Jairo N. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos carries.

1. Why did you start practicing labor and employment law?

I think labor and employment law is a fascinating part of the law that impacts everyone. Most people spend nearly as much time at work as they do with their family.

2. Who is your favorite Supreme Court Justice?

My favorite sitting justice is Justice Sonia Sotomayor.

3. What skills do you value as an employment attorney?

I think an important skill to have as an employment attorney is the ability to tell people’s stories. It is important to be able to effectively convey entirety of the case beyond the legal aspects of it.

4. What do you do when you’re not practicing law?

I like to read fiction and spend time with my daughter.

5. What’s your favorite legal movie

That is a toss-up between A Civil Action and My Cousin Vinny.

6. What’s your favorite legal TV show

Always Sunny in Philadelphia when they are discussing bird law.

7. Have you ever learned something from one of your clients?

I’ve learned that there is no one size fits all solution to dealing with issues. Much like there is no one size fits all way of approaching a problem.

8. If you could argue any case in history, what would it be?

Brown v. Board of Education of Topeka.

9. What do you most want your clients to know about you?

That in me they can find someone that will fight his hardest for them regardless of the outcome.

10. Who’s your favorite judge?

Former Chief Justice John Marshall

Jairo N. Castellanos is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Nevada in Las Vegas with a bachelor’s degree in 2009.  Mr. Castellanos then graduated from The University of Texas School of Law in 2015. Mr. Castellanos is fluent in English and Spanish.